Citation Nr: 0948363
Decision Date: 12/23/09 Archive Date: 01/05/10
DOCKET NO. 05-27 298 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran had active service from October 1966 to October
1968, as well as periods of active duty for training
(ACDUTRA) and inactive duty for training (INACDUTRA) with the
Army Reserves.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a January 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas.
The Veteran's claim was previously before the Board in
February 2008, wherein the Board remanded the Veteran's claim
for additional development and due process considerations.
The case was returned to the Board for appellate
consideration.
FINDING OF FACT
Diabetes mellitus was initially demonstrated years after his
active military service, and there is no competent medical
evidence of record relating diabetes mellitus to the
Veteran's service in the military, including his ACDUTRA and
INACDUTRA.
CONCLUSION OF LAW
Diabetes mellitus was not incurred in, or aggravated by,
active service, nor may such be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 101, 1101, 1110,
1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306,
3.307, 3.309 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Notice
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2009);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
VA issued VCAA notice letters, dated in September 2003,
October 2003, and November 2008, from the agency of original
jurisdiction (AOJ) to the appellant. The letters explained
the evidence necessary to substantiate the Veteran's claim of
entitlement to service connection, as well as the legal
criteria for entitlement to such a benefit. The letters also
informed him of his and VA's respective duties for obtaining
evidence.
In addition, a March 2006 letter from VA explained how a
disability rating is determined for a service-connected
disorder and the basis for determining an effective date upon
the grant of any benefit sought, in compliance with
Dingess/Hartman.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims held, in part,
that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. In the present case, the unfavorable AOJ
decision that is the basis of this appeal was decided after
the issuance of an initial, appropriate VCAA notice.
Although the notice elements required by Dingess/Hartman were
provided to the appellant after the initial adjudication, the
case was readjudicated thereafter, and the appellant has not
been prejudiced thereby. As such, there was no defect with
respect to timing of the VCAA notice.
The appellant has been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notice. Further, the Board finds that the
purpose behind the notice requirement has been satisfied
because the appellant has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim.
Duty to Assist
With regard to the duty to assist, the claims file contains
the Veteran's service treatment records and reports of VA and
private post-service treatment and examination.
Additionally, the claims file contains the Veteran's own
statements in support of his claim. The Board has carefully
reviewed such statements and concludes that he has not
identified further evidence not already of record. The Board
has also reviewed the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the Veteran's claim.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the Veteran in developing the facts
pertinent to his claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Legal Criteria
A veteran is entitled to service connection for a disability
resulting from a disease or injury incurred or aggravated
during active service. See 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303(a). Service connection also is permissible
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
the disease was incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic diseases will be presumed to have been
incurred or aggravated in service if manifested to a
compensable degree within one year after service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. This presumption is rebuttable by probative evidence
to the contrary.
If there is no evidence of a chronic condition during
service, or during an applicable presumptive period, then a
showing of continuity of symptomatology after service is
required to support the claim. See 38 C.F.R. § 3.303(b).
Evidence of a chronic condition must be medical, unless it
relates to a condition to which lay observation is competent.
See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).
Congenital or developmental defects, refractive error of the
eye, personality disorders and mental deficiency as such are
not diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. § 3.303(c).
Analysis
Based on the evidence of record, the Board finds that the
preponderance of the evidence is against the Veteran's claim
of entitlement to service connection for diabetes mellitus.
38 C.F.R. § 3.102.
There is no medical evidence of record indicating the
Veteran's diabetes mellitus was incurred during or as a
result of his military service. The Board notes that the
Veteran did not make any complaints related to his diabetes
mellitus during service or at his discharge examination in
September 1968. The report of his September 1968 separation
examination indicates that the Veteran had a normal clinical
evaluation of the endocrine system and genito-urinary system.
A urinalysis was negative for "sugar." This is probatively
significant and given a lot of weight and credibility because
this was at a time contemporaneous to the alleged incident in
question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-
56 (1996). It stands to reason that, if he indeed had any
problems at his discharge from service, as he is now
alleging, then he would have at least mentioned this during
his military separation examination. See 38 C.F.R.
§ 3.303(a) (service connection requires that the facts
"affirmatively [show] inception or aggravation . . . .").
The Veteran contends that his diabetes was first noted during
active duty for training. In this regard, the Board
previously remanded the case to determine the dates of the
Veteran's active for training. Evidence obtained reflected
orders for the periods from May 18 to June 1, 1985; August 16
to 30, 1986; and June 13 to 27, 1987.
The reserve records reflect that on a quadrennial physical
examination in July 1986, it was noted that the Veteran had
glucose level of 152. The pertinent diagnosis was glucose
intolerance and possible diabetes mellitus. He was referred
to internal medicine. Likewise, while the Veteran's Army
Reserve service treatment records indicate a diagnosis of
diabetes mellitus in January 1987, there is no evidence that
the Veteran's diabetes mellitus was diagnosed during a period
of ACDUTRA. See 38 U.S.C.A. §§ 101(24), 1131;
38 C.F.R. §§ 3.303, 3.6(a) (Service connection may only be
granted for disease or injury incurred or aggravated during
active duty (AD) or any period of ACDUTRA during which the
individual was disabled or died from a disease or injury
incurred or aggravated in the line of duty; or for any injury
incurred during any period of inactive duty training
(INACDUTRA) in which the individual was disabled or died from
an injury incurred or aggravated in the line of duty).
Moreover, there is no evidence of continuity of
symptomatology during the intervening years after his
discharge from active military service and the initial
diagnosis in 1987. See Savage, supra (requiring medical
evidence of chronicity and continuity of symptomatology).
The Board notes that, in the absence of demonstration of
continuity of symptomatology, or a competent nexus opinion,
the initial demonstration of current disability years after
service is too remote from service to be reasonably related
to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.
2000).
More significantly, while the Board acknowledges that the
Veteran was diagnosed with diabetes mellitus, there is no
medical nexus evidence of record otherwise linking his
diabetes mellitus to his military service. See 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303(a). See, too, Mercado-Martinez v.
West, 11 Vet. App. 415, 419 (1998) ("In order for service
connection for a particular disability to be granted, a
claimant must establish he or she has that disability and
that there is 'a relationship between the disability and an
injury or disease incurred in service or some other
manifestation of the disability during service.'"
Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Furthermore, the Board notes that the Veteran did not have
service in Vietnam, and thus he is not presumed to have been
exposed to Agent Orange in accordance with 38 U.S.C.A. § 1116
and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, in the
absence of any evidence to the contrary, the Board concludes
that the contemporaneous evidence of record fails to show
that the Veteran's currently diagnosed diabetes mellitus was
incurred during his active service. See Buchanan v.
Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that
the absence of contemporaneous medical documentation may go
to the credibility and weight of veteran's lay testimony, but
the lack of such evidence does not, in and of itself, render
the lay testimony incredible).
In conclusion, although the Veteran asserts that his current
diabetes mellitus is related to service, he is not competent
to provide an opinion requiring medical knowledge, such as a
question of medical causation. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). The negative evidence of record is of
greater probative value than the Veteran's statements in
support of his claim. See Madden v. Gober, 125 F.3d 1477,
1481 (1997) (in evaluating the evidence and rendering a
decision on the merits, the Board is required to assess the
credibility and probative value of proffered evidence in the
context of the record as a whole). Accordingly, the Board
finds that the preponderance of the evidence of record fails
to establish that the Veteran's current diabetes mellitus is
related to his active military service. The Board has
considered the doctrine of giving the benefit of the doubt to
the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and
38 C.F.R. § 3.102 (2009), but does not find that the evidence
is of such approximate balance as to warrant its application.
Accordingly, the Board finds that there is a preponderance of
the evidence against the Veteran's claim for service
connection for diabetes mellitus.
ORDER
The claim for service connection for diabetes mellitus is
denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs